DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Sylvan Raffaut was injured in a motor vehicle accident on 3 February 2003. In the accident he suffered a number of soft tissue injuries to the lumbar and cervical spine. There is also the possibility of a disc protrusion at C5-6 which is debated in the orthopaedic reports. He also suffers from an adjustment disorder and depressed mood.

2. [2]
   Liability was admitted at a very early stage so the only issue is the quantum of damages to be awarded by reference to the Civil Liability Act 2000 and the Civil Liability Regulation 2003.

3. [3]
   The real issue in the case is the extent to which his present complaints of pain and distress are attributable to the injuries he suffered in the accident, and this in turn raises the issue of Mr Raffaut’s credibility which was strenuously attacked at the hearing.

The Plaintiff’s Credibility

4. [4]
   At the time of the accident, the plaintiff was employed in the produce section of Woolworths. His work involved a significant amount of hard physical work. He and his wife were also working for PMP Distributions as distributors in the Noosaville area of pamphlets and advertising material.

5. [5]
   He acknowledged in his evidence in chief that he had never declared this income (which now forms part of his claim for past and future economic loss), in his tax returns. Not surprisingly, he was cross examined extensively about this by Mr Howe. I agree with him that the plaintiff was to some extent evasive and that he offered a number of seemingly inconsistent explanations for his failure e.g. at one point he seemed to rely on conversations with PMP executives, and at another time he said (unconvincingly) that he gave all the information to his accountant whom he then could not name.

6. [6]
   I had the opportunity to observe the plaintiff closely during the cross examination; indeed at one stage I decided to warn him. He did seem uncomfortable at times but he most certainly did not give me the impression of someone who was devious and prepared to lie, rather he seemed to be a quite guileless man who had not really reflected on the potential significance of the issue to his reliability until he was actually in the witness box. Indeed my impression is fortified by some objective facts, namely that he is a man with a very limited formal education who has worked very hard, in physically demanding jobs, since he was a young teenager. He is obviously intelligent, but his failure to declare income from a second job, and his clumsy attempts to explain his actions does not lead me, in the context of this case, to conclude that he is unreliable when he talks about his symptoms of pain and distress.

7. [7]
   He was also challenged as to why he had never disclosed to Woolworths the level of pain he says he suffers in the more than 3 years since the accident. Throughout that time, he has continued to work for Woolworths and he has been promoted to Produce Manager. He told me that he had been working in the produce area of either Coles or Woolworths for many years, and that he was concerned that if he revealed that he was suffering pain this could compromise his employment. Although there is no evidence to this effect; I found his explanation convincing and it explains to me why he would endeavour to work hard notwithstanding his difficulties.

8. [8]
   Finally on this issue of his credit, none of the many medical practitioners and professionals who have assessed him (including Dr Tuffley) suggests he is a malingerer. It follows that I am prepared to accept the plaintiff as a reliable witness as to his experience of pain and distress, particularly at work.

The Medical Evidence

9. [9]
   Dr Searle, an orthopaedic surgeon, assessed the plaintiff initially for medico-legal purposes on 17 April 2004. Mr Raffaut told him that immediately after the collision he experienced pain in his neck and from the seatbelt and that the lumbar pain came on over the next few weeks. At that stage he was saying that his neck was improving but not his back, although he complained of significant symptoms from both areas. Dr Searle opined in his report of 24 April 2004 that the accident caused cervical and lumbar ligament strains and possibly injury to the C5-6 disc. He recommended re-assessment in 6 months. At that stage he assessed him by reference to the AMA guidelines 5^th edition as having a 14% whole person impairment achieved by combing a 7% impairment for the neck problem with an 8% impairment for the lower back.

10. [10]
    Dr Searle saw Mr Raffaut again on 27 November 2004 for review. There had been some improvement, although he was still complaining of neck pain causing headaches aggravated by repetitive arm movements, and constant low back pain aggravated by prolonged sitting, standing still or sustaining the partly flexed posture. Dr Searle’s opinion in his report of 11 December 2004 was:

“There is no definite evidence of disc injury but the on-going symptoms from the cervical and lumbar ligament strains are permanent and cause a moderately severe degree of disability.”

11. [11]
    He did not anticipate any significant change with the passage of time, however because of the absence of two signs present on examination earlier, in terms of the AMA guidelines he no longer had a rateable assessment and therefore his whole person impairment was assessed at 0%.

12. [12]
    In August 2005, an MRI was conducted which revealed a right para central focal disc protrusion at C5-6. This was sent to Dr Searles and he commented in his report dated 25 October 2005.

13. [13]
    He attributed this to the accident. He noted:

“This is a very common result of a whiplash injury, and C5-6 is the most vulnerable level.”

14. [14]
    In the meantime, Mr Raffaut was assessed by orthopaedic surgeon Dr Tuffley on behalf of the Insurer on 17 February 2005. Dr Tuffley had read Dr Searle’s first report prior to assessment. He assessed the plaintiff’s cervical and lumbar injuries as resulting in a zero impairment by reference to the AMA Guidelines, but, by reference to the chapters in the Guides that deal with philosophy and purpose and use etc, and taking into account what he described as “some minor residual symptoms in his cervical and lumbar regions relating to the accident”, he assessed his permanent impairment at 2% of the whole person. Dr Searle agreed with Dr Tuffley findings in his report of 25 October 2005, although he himself had not referred to these other chapters in his earlier report. In a later report, he explained that although he agreed with Dr Tuffley’s findings, he did not agree with his conclusions.

15. [15]
    Dr Tuffley was asked to look at the MRI scan in May 2006 and his report of his findings and opinion is dated 31 May 2006. As he notes, the pathology at C5-6 revealed in the MRI scan was not evident or reported upon following a CT scan of his cervical spine performed in May 2003. With this in mind, he “critically reviewed” the CT scan and noted “a small area of vertebrae body irregularity involving the upper end plate of C6” situated in the same position as the disc protrusion seen on the MRI scan. He opined therefore that the disc protrusion was present in May 2003.

16. [16]
    He opined that the disc protrusion pre dates the accidence because a degenerative changes in the cervical spine most commonly occur at C5-6, and the bony changes seen at C-6 in the CT scan “suggest a degree of chronicity with regard to the C5-6 disc herniation.”

17. [17]
    He maintained his earlier assessment of 2% impairment of the whole person.

18. [18]
    Dr Searles reviewed this opinion and, not surprisingly, he disagreed with it. He thought that because the plaintiff was only 29 at the time of the accident it was unlikely that he would have degenerative changes in the cervical spine. He was not as sure as Dr Tuffley that the CT scan did show the disc herniation revealed in the MRI Scan. He also thought that an absence of any cervical symptoms or clinical findings prior to the accident was significant.

19. [19]
    In his final report dated 29 June 2006 Dr Tuffley disputes these conclusions. He refers to research (which Dr Searles accepts) to the effect that the likelihood of finding mild degenerative changes in the region of the spine in a 30 year old is at least 30%.

20. [20]
    At the end of the day, there is insufficient evidence to satisfy me on the balance of probabilities that the plaintiff suffered a disc herniation in the accident at C5-6.

21. [21]
    Accepting the plaintiff as a reliable witness in his description of his symptoms, I accept his evidence that at present it is the neck that bothers him most. His neck symptoms interfere with his sleep; it is stiff in the morning and some of the repetitive tasks he is required to perform at work e.g. cutting watermelons and wrapping the pieces for sale causes discomfit and pain in his neck. He also suffers pain when lifting and he is required to deal with 8-10 pallets of stock a day which is initially loaded into the coldroom and then onto a trolley for distribution in the shop. Stacking shelves requires a lot of repetitive movements above and below head height which cause him pain and discomfort. At the end of each working day his neck is very sore and stiff on the right side. He takes about 4 ordinary strength Panadol a week. He did try Celebrex but it upset his stomach. He also experiences pain and discomfit in his lower back in performing many of the required physical tasks during the working day. He tried a chiropractor once and it helped but he could not afford the fees. He agreed that if he could afford it, he would use chiropractors and physiotherapists.

22. [22]
    On the home front, he has lost interest in his garden and he feels constantly drained. His wife, who was an impressive witness, supported his evidence in this regard. He played AFL football with the Noosa Tigers prior to the accident, training two nights and played Saturdays. He enjoyed football a lot. He has not played since. I am satisfied that he has lost the ability to enjoy football because of the accident, however it has to be said at his age his playing days were probably numbered in any event.

The Occupational Health Evidence

23. [23]
    Mr Raffaut was assessed on a number of occasions by an occupational therapist Mr Ng from Therapy Solutions who assessed him in July 2005. By the time of the hearing Mr Ng was no long with Therapy Solutions and was cross examined on the telephone from Perth. He was fully assessed by Mr Stephen Hoey from Therapy Solutions on 6 October 2006 and Mr Hoey provided a report that day and gave evidence in the Plaintiff’s case. Initially, there was some suggestion that his evidence might be the subject of objection, but this was not taken any further.

24. [24]
    He assessed the plaintiff as having a number of occupational restrictions:

• Decreased tolerance for long periods of sitting or standing

• Unfit for heavy or repetitive lifting

• Restrictions with forward bending or twisting

• Restrictions holding the head, neck and shoulders in fixed postures.

25. [25]
    Mr Hoey has worked extensively with workers in the supermarket industry. He was a most impressive witness.

26. [26]
    His recommendation is that Mr Raffaut be re-deployed within the organisation into a lighter area or that his present duties be modified to reduce the physical component of his job.

27. [27]
    I accept the plaintiff’s evidence that his present job as Produce Manager has only a 10% component for non-physical tasks such as ordering and preparing staff rosters. The balance is quite physically demanding work, a lot of which involves stocking shelves involving functions that effect his neck and back. He has eight staff under his direct supervision, only three of whom are full time, so there is little likelihood that Mr Hoey’s recommendation will be practical for this man.

28. [28]
    Mr Hoey agreed with Mr Howe that the plaintiff was a stoic man. Mr Howe raised this with a number of professional witnesses to establish what is really trite, and that is that some people are stoic and can soldier on despite adversity while others are brought low by even minor set backs. My impression of the plaintiff is that he is stoic in the work place because he is determined to provide for his wife and children, but is less stoic at home. My impression is fortified by his wife’s evidence which was to the effect that the physical effects of the job combined with his neck and back problems, have resulted in a significant decline in the quality of the plaintiff’s home life. His stoicism also explains why he would not say anything to his employer, and why he would understate to doctors the amount of time he has had off from work because of his problems.

29. [29]
    Mr Hoey made a very good point in discussing Dr Tuffley’s opinions that this man could work on until retirement, and could play football. He points out correctly that the orthopaedic surgeon does tests to determine range of movement, and relies on clinical findings and tests including x-rays etc, whereas in his assessment he does much more extensive testing simulating in his practice rooms the tasks that the plaintiff is required to carry out in the work place. As he notes, the doctor assesses impairment which is one component of disability.

The Psychiatric / Psychological Evidence

30. [30]
    The plaintiff relies on a report of psychologist Steve Morgan and the defendant relies on a report from psychiatrist Dr Walden both of whom gave oral evidence. It is common ground that the plaintiff has suffered a psychiatric injury as a result of the accident namely an adjustment disorder and depressed mood. The dispute relates to the extent of the injury, which in turns requires an application of the relevant provisions of the Civil Liability Regulation 2003 to the plaintiff’s impairment. The Court is required to rate the permanent impairment caused by the psychiatric illness according to the psychiatric impairment rating scale (PIRS) set out in Schedule 6 of the Regulation. Both experts have provided the Court with a PIRS report as required by s. 6(3)(b) of the Regulation, and it is in relation to those reports that an issue arises. The differences in opinion arise in the areas of self-care and personal hygiene (Mr Morgan says Class 3, Dr Walden says Class 1); travel (2, 1); and adaptation (2, 1). This leads Mr Morgan to conclude that the plaintiff (at 6%) falls into a median Class 2 of mild impairment, and Dr Walden to conclude that he falls into the median Class 1 i.e. little or no impairment. Given the complexity of the calculations required; it is difficult to give any real meaning to words such as “mild” or “little or no” except by reference to the evidence in the light of the examples of indicators set out in Schedule 1.

31. [31]
    With this in mind, Mr Morgan fairly conceded in relation to self-care and personal hygiene that the plaintiff falls into Class 1 and therefore Dr Walden’s evidence should be preferred in relation to this area of functional impairment. There is no evidence that the plaintiff has any difficulties with travel and it is not easy to fathom why Mr Morgan places him in Class 2 which has an example “can travel without a support person, but only in a familiar area …”. Again given the indicator examples given in Schedule 6 under “adaptation”, the plaintiff clearly falls into Class 1. It follows that in assessing an overall injury scale value (ISV), in relation to psychiatric injury I prefer Dr Walden’s evidence.

General Damages

32. [32]
    This is a multiple injury case involving soft tissue injuries to the cervical and lumbar spine and a psychiatric injury. The maximum ISV for each is 10 (respectively items 88, 93 and 13). Pursuant to s. 4 of the Regulation and in light of my findings on the evidence as to the adverse impacts on this plaintiff of his injuries, I am satisfied that the maximum dominant ISV (for each injury) is inadequate to reflect the level of impact, therefore I will uplift the maximum by 20% which produces an ISV of 12 which results in an award under s. 62(c) of the Act of $13,800.

Economic Loss

33. [33]
    Mr Howe reasonably makes much of the fact that despite his disabilities the plaintiff has continued to work in his physically demanding job and has even had a promotion. In cross examination, the plaintiff said that he had taken regular sick leave since the accident as a result of his back and neck problems and Exhibit 43 is an admitted record of sick leave taken. Mr Howe was able to cross examine him in detail about one entry only and that is the 2.5 days taken in August 2005. The plaintiff acknowledged that a medical certificate was only required if an employee took more than two days, and that in relation to this occasion (the only one exceeding two days) he provided a medical certificate which said he had the flu. He also says that he was compelled to take holiday leave because of his symptoms and he claims a period of eight weeks (including sick leave) as a component of past economic loss. The largest component for past loss relates to the reduction in earnings from the PMP work following the accident. He told me that because of his symptoms he had to reduce the run from around 1000 homes to 700 in early April 2003 which reduced his income; and in November 2004 they gave away the paper run which again reduced his income. His calculated loss is set out in Exhibit 40. He also says that his symptoms became such that in September 2006, he and his wife gave away the distribution business altogether. His evidence on this point conflicts with the evidence of Angela McPherson who is an owner of PMP. She recalls a conversation with Mr Raffaut in August 2006 at their business premises in Tewantin when he told her that he had to finish up because he was too busy helping out at the Tewantin store which, on his evidence opened in mid-September. He says that he spoke to her on the telephone around September and said he could not cope anymore and was giving up. He does not say that he mentioned his injuries, just that he could not cope. I think the plaintiff is mistaken in his recollection of what was said. There are a number of reasons why I think it is more probable than not that the plaintiff and his wife decided to discontinue the pamphlet business for reasons not associated with the accident. In the preceding year since his promotion his gross earnings from Woolworths had increased from $45,878 to $53,861. At 4 years he and his wife had been by far the longest serving distributors for PMP; the average for the 30 or so people working for the company being less than a year. His wife starting working some two years ago and I think that it is more probable than not that his extra responsibilities and income together with her income are the reasons for ceasing the work and not his injuries. On the wife’s evidence, her return to work roughly coincided with the further downsizing of this work in November 2004 and I note that she did actively participate in the work, indeed the plaintiff said that his wife Terry usually picked up the pamphlets because he was at work.

34. [34]
    Given my favourable impression of the plaintiff otherwise, I think it is probable that the downsizing in April 2003 was directly as a result of the injuries, and that the further reduction in November 2004 was partly due to the accident.

35. [35]
    In my view, it is unreasonable to allow the plaintiff the full benefit of sick leave and holidays as claimed in Exhibit 40. As Mr Howe points out he always had sick leave available in any event. Doing the best I can I will allow him 50% of the amount claimed under the head in Exhibit 40 i.e. $2,180, and for the past loss of income from PMP I will allow him the full amount claimed in Ex 40 for the earlier period, namely $3,040 and half for the period from November 2004 to the date of cessation of the business, namely $4,367. For the future and in the light of my assessment of the plaintiff as a credible witness in describing his symptoms; and bearing in mind the evidence of his limited educational skills and qualifications and that he will probably be confined to the type of employment he presently undertakes which will be compromised in the future because of his neck and back problems, I do not think a nominal sum should be allowed as submitted by the defendant.

36. [36]
    It is clearly a case in which future loss cannot be precisely calculated so that s. 55 of the Act requires me to “state the assumptions on which the award is based and the methodology it used to arrive at the award.”  Such precision at first glance seems to be at odds with the proposition that damages cannot be precisely calculated however to avoid the fate of the trial judges award under this head that occurred in the majority judgement in Ballesteros v Chidlow & Anor [2006] QCA 323 I will state my assumptions:

• the plaintiff will continue with difficulties in his present employment without any real prospect of either Mr Hoey’s recommendations coming to fruition;

• his antecedents befit him for work which primarily involves quite hard physical work;

• in accepting the evidence of Mr Hoey and that of Dr Searles in preference to Dr Tuffley, I assume that the plaintiff will have to take sick leave and/or holidays because of his disability and it is probable that as he gets older he will need to take more time;

• he is disadvantaged on the limited labour market as befits his skills and educational background;

• there is a genuine risk that he will lose a part of his working life.

37. [37]
    It is difficult to state methodology but doing the best I can, I have taken into account Mr Hoey’s evidence as to this man’s occupational deficiencies and the time he estimates he will need to have off in order to keep going and the various contingencies that apply in such cases. Clearly, he is not entitled to any future component for loss of the distribution work.

38. [38]
    Doing the best I can, I will allow him $50,000 under this head.

39. [39]
    The only other disputed issue is the need for a special mattress as an item of special damage. There is no medical evidence to support this but I accept it as reasonable based on the plaintiff’s own evidence.

40. [40]
    The award is as follows:

• General Damages      $13,800.00

• Pas Economic Loss     $ 9,587.00

• Interest (2.845% for 3.75 years)    $ 1,022.00

• Economic impairment (to include superannuation) $50,000.00

• H.I.C. refund      $ 1,411.60

• Rehabilitation expenses paid by employer  $ 1,196.00

• Special Damages (see Exhibit 38)   $ 2,289.00

• Interest thereon      $    244.00

• Future expenses      $ 2,500.00

        $82,050.00(rounded off)

41. [41]
    Judgment for the plaintiff for $82,050.00.

42. [42]
    I will hear the parties on costs.